Dodging Fight Over Bruce Babbitt, Clinton Nominates Stephen Breyer

"Orrin, you won this one," Howard Metzenbaum snarled

As we saw in the last post, Justice Harry Blackmun had privately told the White House early in 1994 that he would be retiring, and White House officials had been “assembling the names of possible replacements for months.”

How did Stephen Breyer emerge as Bill Clinton’s nominee to replace Harry Blackmun when he didn’t even appear on the list of names that White House officials circulated to reporters? How did Clinton, having promised to select “someone with a big heart,” settle on a candidate he had assessed to be “heartless”?

I don’t claim to be able to provide a comprehensive answer to these questions. But as a staffer to Senator Orrin Hatch, the senior Republican on the Judiciary Committee, I had an interesting window on events. And I was so struck at the time by what happened, and by what I (and others) perceived to be Hatch’s influence on Clinton’s selection, that I immediately recorded my recollections in a memo.

Memory is a tricky thing. It’s no surprise that nearly 30 years later I have no recall of some of the minutiae in the memo I wrote on the evening on which Clinton announced that he had picked Breyer. But I am puzzled that my memo makes no mention of one thing that I distinctly remember. (Did I in my haste simply forget to include it? Or am I misremembering?)

Except where otherwise noted, passages in quotes are from my memo.

On May 4, 1994, a full four weeks after Blackmun announced his retirement, Clinton still hadn’t made his pick. I heard that day that “word is that the short list is down to four: Babbitt, Arnold, Cabranes, Kearse.” That’s Interior Secretary Bruce Babbitt, Eighth Circuit judge Richard Arnold, federal district judge José Cabranes, and Second Circuit judge Amalya Kearse. No mention of Breyer.

Then-Secretary of Interior Bruce Babbitt

“Presence of Babbitt on list sets off alarm bells.” Hatch had worked hard the year before to make sure that Babbitt wasn’t the nominee. As I’ve explained, Hatch strongly preferred sitting judges who had demonstrated that they understood that judging is a craft distinct from politics. Hatch also recognized that opposition to Babbitt from western landowners and lessees of federal lands would ensure a fight if Clinton nominated Babbitt.

I confirmed with a Wall Street Journal reporter that Babbitt was thought to be on the short list, and I then connected Hatch with the reporter. “Shortly after speaking with [the reporter], Hatch rounds us [staffers] up, says that Babbitt is on short list, expresses intense dislike of Babbitt and what he would do to the Court, and says that we should work vigorously to stop him.”

The Wall Street Journal article the next day (titled “Clinton Has Supreme Court Short List; Judge Arnold of Arkansas Is a Favorite”) discussed the four short-list candidates. The article stated that “Hatch declined yesterday to comment [on the record] on the prospect of a Babbitt nomination, but the Utah lawmaker in the past has made it plain that he and other conservatives would oppose such a move.” That was enough to remind the White House that nominating Babbitt would provoke a fight. The article did not mention Breyer.

Saturday, May 7:

“Hatch calls me at 10 a.m. Tells me confidentially of call from Clinton the evening before. Says Clinton clearly wants to appoint Babbitt, but is also considering Arnold and Breyer. Cabranes and Kearse have fallen low on the list. Hatch emphasizes that we need to stop Babbitt. Not taking mention of Breyer very seriously, I make flurry of calls to signal Hatch’s strong opposition to Babbitt.”

Other accounts, I’ll note, indicate that Clinton really wanted to nominate Arnold. But there were serious concerns about his health. According to the notes taken by Diane Blair, a confidante of Hillary Clinton, Hillary was “wild” about Arnold’s health problem:

Blair paraphrases her close friend [Hillary] saying, “BC [Bill Clinton] wouldn’t even think about naming someone from Neb. or Iowa if they had possible cancer threat– so why do it just because he knows the guy.”

Blair’s notes reveal that Hillary wanted Babbitt:

If HRC carried the day, and sounds as if she is, it will be Babbitt. She’s not wild about him. Wishes there were a 3rd choice. But there isn’t. Which in itself is very, very sad and strange.

(It’s not clear from Blair’s notes whether Hillary Clinton perceived Breyer to be no longer in the mix as “a 3rd choice” or whether she regarded him as unacceptable. As I’ve explained, one big reason for the “sad and strange” dearth of candidates that a Democratic president would find appealing—including on the important factor of age—is that Republican presidents appointed lower-court judges for the twelve years before Clinton became president.)

Hatch was having frequent calls with White House officials. By Monday, May 9, Babbitt appeared to be “the almost certain pick.” But on Thursday, May 12, “I first learn that DeConcini has been working behind the scenes against Babbitt.” That’s Dennis DeConcini, the Democratic senator from Babbitt’s home state of Arizona. DeConcini was a moderate Democrat, but I have to wonder whether, apart from some political distance between him and Babbitt, there was some personal antagonism between them. The politics of the nomination process can have a lot of intrigue.

DeConcini’s opposition provided the “first sign of real hope” to stop Babbitt. The Judiciary Committee had 10 Democrats and 8 Republicans, so “if the White House worries about the possibility of a tie vote out of Committee, it might look to another candidate.”

Another Senate Democrat from the West, Ben Nighthorse Campbell of Colorado, “(at Hatch’s urging) had also privately expressed reservations to the White House about Babbitt.”

Friday, May 13: “Exasperating rumors all day long…. [A]round 2:00 rumors fly that [Arnold] will be appointed,” but at 4:00 “CNN says that it definitely won’t be him.”

I “[h]ear that Hatch thinks the White House is back to Babbitt. Spirits drop.”

This is when I distinctly recall something not recorded in my memo. As soon as I heard that Hatch thought the White House was back to Babbitt, I called a staffer for Republican senator Alan Simpson of Wyoming. And within a matter of a few minutes Simpson was on camera (in the Senate press gallery, perhaps) lambasting Babbitt.

“Suddenly, around 5:30, [I] hear reports that Clinton will make announcement at 6:00 and that it will be Breyer. Go to Hatch’s office at 5:55. He’s exuberant—rightly so. Hugs all around.”

I was with Hatch for a sequence of two phone calls, one from Breyer, one from Clinton:

“Breyer calls him. Hatch (semi-jokingly): You better not let me down; if you let me down, I’ll kill you.

“Then word that Clinton is calling. Hatch hangs up on Breyer, picks up Clinton’s call: ‘Mr. President, you’ve made a wonderful choice. I know that you’re sick about not being able to appoint the others. But trust me, Breyer will be great. Has a big heart.’”

Masterful gamesmanship by Hatch. According to Diane Blair’s notes, just two days earlier Clinton “said he did not want to name Breyer.” Now Hatch was reassuring Clinton that the very candidate Clinton had dismissed as “heartless” met Clinton’s “big heart” test.

I then accompanied Hatch to an interview on the Capitol grounds. We ran across liberal Democrat Howard Metzenbaum, who was not fond of Breyer and had been pushing for Babbitt. “Orrin, you won this one,” Metzenbaum snarled.

* * *

With Clinton, no internal decision was ever final. White House counsel Lloyd Cutler, a strong supporter of Breyer, had ample reason to know that. It’s a safe bet that it was at Cutler’s insistence that, in an odd spectacle, Clinton announced his nomination of Breyer late on a Friday afternoon even though Breyer himself was not present at the announcement. Best to have Clinton lock himself in, Cutler and other White House supporters of Breyer must have thought, before he would find occasion to change his mind again.

(Some months later, as I will discuss in a future post, Clinton backed away from nominating to the D.C. Circuit a candidate on whom he had given the final internal sign-off. Cutler, who had left the White House by then, later told me that he was astonished by Clinton’s reversal.)

* * *

Liberals complained bitterly about Hatch’s influence on Clinton’s pick. In a C-Span interview four days later, Senator Metzenbaum was asked for his reaction to Clinton’s nomination of Breyer. He responded:

[M]y strong feeling is that the president, in his heart maybe, wanted to go with Babbitt but after he talked with Orrin Hatch and indicated there might be some opposition, all public indications are that he then decided to go with Breyer, that being an easier choice. Now I don't know what the president was thinking. I'm not privy to his thinking. I didn't speak with him about the subject. But my feeling is that Bruce Babbitt would have been appointed except for some opposition as indicated by Orrin Hatch…. And in all my experience in the United States Senate, about nineteen years, I don't remember any president checking with somebody in the opposite political party in order to determine or to affect his judgment with respect to deciding who should be appointed to the Supreme Court.

In a column that same day, Washington Post columnist E.J. Dionne Jr. was livid:

Last week's bizarre quest for a Supreme Court justice is the latest example of Clinton's propensity to alienate friends and embolden enemies.

The difficulty does not lie with his ultimate choice, Judge Stephen Breyer, an intelligent moderate much respected within the federal judiciary. But Clinton took a defensible choice and turned it into a personal defeat. For it was he who let the word go forth that he wasn't really crazy about Breyer, that he wanted to name a thoughtful politician to the court. Interior Secretary Bruce Babbitt seemed just the person, and Clinton aides let it be known that his nomination was imminent….

Clinton cut and ran, dispiriting supporters who thought he meant what he said about looking for a different kind of justice this time out….

[I]t is a large political mistake to give way when doing so tells your friends you won't fight and tells your enemies they can roll you. If Clinton won't stand up for Bruce Babbitt against Orrin Hatch, why should the president expect other Democrats to stand up for him?…

Precisely because so much is at stake in the success or failure of his presidency, Clinton can't afford the ad hoc, last-minute style of deciding things that he seems so fond of.

One week after the pick, another columnist lamented that Clinton had “run from a fight”:

When he began looking for a new Supreme Court justice six weeks ago, Clinton made no secret he wanted a nationally known politician who could give the court a down-to-earth, populist touch.

He wanted a future giant in the liberal footsteps of Harry Blackmun, William Brennan and Thurgood Marshall.

After the Reagan/Bush era, he wanted a tough persuader who could combat the right-wing rhetoric of Justice Antonin Scalia.

Clinton could look a mile away at the Department of the Interior to find such a potential paragon in Bruce Babbitt. But picking Babbitt would have meant a nasty spat with Sen. Orrin G. Hatch, R-Utah, and other western senators.

So, Clinton -- a ho-hum pattern -- agonized, vacillated and punted….

Sen. Howard Metzenbaum, D-Ohio, grumped, “Backing off someone because of Orrin Hatch's opposition is embarrassing.”

* * *

As we shall see, the Left’s anger at Clinton may well have had momentous consequences years later.